24 August 2022
In my practice as a divorce lawyer, I regularly have to deal with parents who want to move with their children.
But is moving with a child in the case of sole custody allowed? Do you and your former partner have joint custody? If so, then your former partner’s permission is required if you want to move with the children. I will explain how this works in the case of sole custody below.
In the case of sole custody, it was initially thought that the consent of the parent without custody was not necessary. However, in a recent Supreme Court ruling of 15 October 2021, the Supreme Court made it clear that the parent with sole custody cannot simply move with the children. Are the children moved without the consent of the former partner who does not have custody? Then there is a risk that the court will order the parent with sole custody to move back.
The parent with sole custody has, by law, an obligation to promote the development of ties between the children and the other parent who does not have custody. Also, the parent with sole custody has the obligation to consult the other parent when making decisions about the children. The parent with sole custody must always keep the other parent informed of important matters in the children’s lives.
The mother had legal custody of the eight-year-old daughter. The father had acknowledged his daughter before her birth, but he did not have parental authority.
In 2018, the father started legal proceedings. The mother was ordered to cooperate in a provisional visitation arrangement between the father and the daughter. The father last saw his daughter in March 2019. In April 2019, the mother and daughter were suddenly registered in the Key Register of Persons (BRP) as having emigrated. In July 2019, the daughter was placed under the supervision of a guardian. The father also requested that his daughter move back to the Netherlands. Subsequently, the court granted the father joint custody and ordered the mother to move back to the Netherlands. The mother appealed against this decision. On appeal, the court’s decision regarding moving back to the Netherlands was overturned. The father appealed in cassation.
The Supreme Court subsequently considered on 15 October 2021:
“It should be noted that even in the case of sole custody, there are grounds for limiting the freedom of choice of the parent with custody regarding the child’s place of residence if this parent does not comply with the obligation to promote contact between the child and the other parent (Article 1:247(3) of the Dutch Civil Code (Burgerlijk Wetboek)). Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) requires the court to take all appropriate measures in the circumstances to persuade the parent with custody to cooperate in arranging access between the child and the other parent.
An order to prevent the parent with custody from moving or an order to instruct that parent to move back, may be an appropriate measure. It should be taken into account that such a measure is less drastic than granting sole custody to the other parent, which is explicitly provided for by law (Article 1:251a(1) and Article 1:253c(1) and (3) of the Dutch Civil Code (Burgerlijk Wetboek)).”
According to the Supreme Court, the right of access to the children can thus limit the freedom to move of the parent with sole custody.
Are you planning to move with your children? If so, as a divorce lawyer, I recommend that you discuss the move with your former partner first. If you do not, there is a risk that your decision to move will be overturned by the courts. Also, in the worst case scenario, you run the risk of possibly losing custody.
If you are planning to move with your children or if your former partner is planning to move with the children, please contact me for advice. As a divorce lawyer, I will be happy to assist you.
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